Licence Appeal Tribunal File Number: 23-007205/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Odette Canete
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Adam Kuciej, Counsel
For the Respondent: David Koots, Counsel
HEARD: By way of written submissions
OVERVIEW
1Odette Canete, the applicant, was involved in an automobile accident on April 9, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in her application because she failed to attend insurer’s examinations under s. 44 of the Schedule.
RESULT
3The applicant is statute-barred from proceeding with the following treatment plans (“OCF-18s”):
i. OCF-18 submitted April 25, 2022 for physical therapy in the amount of $3,622.31;
ii. OCF-18 submitted May 3, 2022 for occupational therapy services in the amount of $4,538.80;
iii. OCF-18 submitted May 3, 2022 for an occupational therapy assessment in the amount of $2,200.00;
iv. OCF-18 submitted May 11, 2023 for a neurological assessment in the amount of $2,742.50; and
v. OCF-18 submitted June 5, 2023 for a psychological assessment in the amount of $2,144.80.
4The applicant may proceed to the substantive hearing with the remaining issues in dispute.
ANALYSIS
Parties’ positions
5The respondent submits that the applicant has failed to attend any of the eight scheduled and re-scheduled insurer’s examinations (“IEs”). By way of correspondence and Notices of Examination (“NOEs”), the respondent had requested the applicant’s attendance at a general practitioner insurer’s examination (“IE”), a neurological IE and a psychological IE. These IEs were scheduled to assess the applicant’s entitlement to the eight treatment plans in dispute and whether the applicant remains in the Minor Injury Guideline (“MIG”).
6The respondent further submits that the applicant has not provided a reasonable explanation for her failure to attend and that all of its NOEs provided sufficient medical reasons to inform the applicant why the examinations were required. As a result of the applicant’s non-attendance at all of the scheduled IEs, the respondent submits that the applicant is statutorily barred from proceeding with her application pursuant to s. 55(1)2 of the Schedule.
7The applicant argues that she should be permitted to proceed with her application. Although she does not dispute that she failed to attend all of the scheduled IEs, the applicant submits that she is not barred by s. 55(1)2, since all of the respondent’s correspondence and NOEs were non-compliant with s. 44(5) of the Schedule. The applicant relies on M.B. v. Aviva Insurance Canada, 2019 CanLII 101465 (ONLAT), 16-003316 v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 to argue that the respondent failed to provide sufficient “medical and other reasons” for the IEs.
8Further, the applicant argues that the respondent had medical records early in the claims process which clearly indicated that she should be removed from the MIG due to a concussion diagnosis and psychological impairments. However, none of the NOEs referenced this documentation. Finally, if the NOEs were found to be compliant, the applicant submits that the application should be stayed, pending her attendance at the assessments.
Law
9Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit.
10Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance. A notice under s. 44(5) must state the medical reason for the examination, whether the insured’s attendance is required, the name, title and designation of the person conducting the IE and the date, time and location of same.
OCF-18 submitted April 25, 2022 for physical therapy
OCF-18 submitted May 3, 2022 for occupational therapy services
OCF-18 submitted May 3, 2022 for an occupational therapy assessment
11I find that the respondent’s NOEs are compliant with s. 44(5) of the Schedule. In response to the applicant’s OCF-18s for physical therapy, occupational therapy services and an occupational therapy assessment, the respondent sent correspondence dated August 5th, 8th and 11th, 2022, requesting the applicant’s attendance at a GP IE scheduled for August 25, 2022.
12The stated reason for the assessment was that the hospital emergency records appeared to indicate that the injuries were soft tissue and minor in nature, that an assessment was required to determine whether the OCF-18s were reasonable and necessary and if treatment outside of the MIG limits was required. The notices further identified the information that had been reviewed and requested additional documentation, including clinical notes and records (“CNRs”) from the applicant’s family physician, specialists, hospital records and a decoded OHIP summary.
13The applicant argues that the respondent has failed to provide a principled rationale for the requested IE, in accordance with the principles of MB, Peel Mutual and Hedley. Rather, she argues that the reason provided was essentially boilerplate, and omitted any reference to her family physician CNRs, the OCF-3 or her mild traumatic brain injury diagnosis. The applicant submits that the respondent ignored key evidence and provided an unsupported and incongruous conclusion.
14I am not persuaded by the applicant’s argument. I do not find that the stated reason provided by the respondent was boilerplate, but rather, it specifically referenced the medical documentation it had reviewed and its conclusion that the applicant’s impairments were soft-tissue and minor in nature. The applicant argues that the hospital records indicate the possibility of a concussion, which was corroborated by Dr. Atwal’s CNRs. However, I agree with the respondent that the hospital records were unclear as to whether the applicant had sustained a concussion. I do not find the respondent’s reference to soft-tissue injuries to be unsupported or incongruous with the medical evidence. Rather, it is a specific detail about the applicant’s medical condition which formed the basis of its decision.
15The notices further specified what information the respondent did not have but required, and identified the name, title and designation of the person conducting the IE, the date, time and location.
16The applicant does not dispute that she failed to attend the GP IE scheduled for August 25, 2022 or the rescheduled IE on September 29, 2022. No explanation was provided by the applicant for the non-attendance, other than her submissions as to the purported deficiencies of the notices. As such, I find that the applicant failed to attend properly scheduled IEs without reasonable explanation, and is statute-barred from proceeding with these OCF-18s pursuant to s. 55(1)2 of the Schedule.
OCF-18 submitted May 11, 2023 for a neurological assessment
17I find that the respondent’s NOE and correspondence dated May 26, 2023 is compliant with s. 44(5) of the Schedule.
18The respondent’s NOE specified the specific documentation reviewed, namely, the OCF-3, s. 25 functional assessment report, hospital records and CNRs of the walk-in clinic. It further noted that the emergency room records indicated soft-tissue injuries and no loss of consciousness. As such, the respondent requested a neurological IE to determine whether the proposed neurological assessment was reasonable and necessary.
19The applicant argues that the respondent had in its possession clear evidence of a concussion diagnosis, and that it should have referenced such documentation in its stated reasons. However, I agree with the respondent that the medical reason provided does not ultimately need to be proven to be medically correct. Rather, the stated reason must provide specific details about the insured’s medical condition, to explain the basis for the respondent’s decision. I find that the respondent’s notice provided such sufficient medical reasons. It clearly referenced the medical records it had reviewed, and the basis for its IE request. Although the applicant may disagree with the reasons for the proposed examination, this does not render the notice invalid.
20The applicant did not attend the neurological IE scheduled for July 17, 2023 or the rescheduled IE on August 14, 2023. She does not submit any explanation for the non-attendance, other than her submissions on the purported deficiency of the notice. As the applicant failed to attend properly scheduled IEs and did not provide a reasonable explanation for her non-attendance, she is barred from proceeding with this OCF-18 pursuant to s. 55(1)2.
OCF-18 submitted June 5, 2023 for a psychological assessment
21I find that the respondent’s NOE dated June 23, 2023 is compliant with s. 44(5) of the Schedule.
22The stated reasons identify the medical documentation reviewed by the respondent, including the OCF-3, CNRs of Dr. Atwal and hospital emergency records. The respondent notes the psychological symptoms described in the medical documents, the applicant’s return to work, states that no prescriptions for psychological impairments were noted and that the emergency room records had indicated only soft-tissue injuries and no loss of consciousness.
23The applicant argues that the reasons are deficient, as they omit any reference to the applicant’s concussion and only highlight psychological symptoms. She further argues that a principled rationale would require the respondent to explain why it did not accept the medical evidence she had submitted. I am not persuaded by the applicant’s argument. I find that the respondent provided sufficient medical reasons.
24I find that the NOE clearly and unequivocally stated the reason for the psychological IE. The medical reason provided was clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IE. Although the applicant argues that the respondent was provided with evidence of psychological impairments by way of her family physician’s CNRs, I agree with the respondent that a finding by one medical professional does not preclude the insurer from obtaining its own medical opinion.
25The applicant does not dispute that she failed to attend the psychological IE scheduled for July 12, 2023 or the rescheduled IE on August 30, 2023. She did not provide a reason for the non-attendance, other than her submissions as to the purported deficiencies of the notices. As such, I find that the applicant failed to attend properly scheduled IEs without reasonable explanation and is statute-barred from proceeding with this OCF-18.
OCF-18 submitted August 25, 2022 for physical therapy
OCF-18 submitted November 22, 2022 for physical therapy
26I find that the respondent’s NOEs for these treatment plans did not comply with s. 44(5) of the Schedule.
27I agree with the applicant that the respondent failed to provide a “medical and any other” reason for the examination. The language contained in the NOE is vague and fails to provide specific details about the applicant’s medical condition. It simply states there is insufficient medical information to determine if the applicant was entitled to treatment outside of the MIG.
28In its NOEs dated August 25, 2022 and November 22, 2022, the respondent did not specify the information it had reviewed in coming to its determination, other than stating that it had reviewed “your file”. The respondent also did not specify what specific additional information it would require, other than “compelling medical information”. I note that the respondent’s previous NOEs contained specific details about the applicant’s medical condition, the documentation it had reviewed and the information it still required. As such, I do not find that this was a situation where no medical documentation had been provided, which limited the respondent’s ability to provide a medical reason or specify what additional information was still required from the applicant.
29In order for an insurer to invoke its s. 44 right to an IE, it must first provide a legally sufficient notice pursuant to s. 44(5). As the respondent’s NOEs with respect to these treatment plans do not comply with section 44(5), it cannot rely on the remedy available in section 55 of the Schedule to bar these OCF-18s from proceeding to a hearing.
Does s. 55(2) apply to the applicant?
30Section 55(2) of the Schedule permits the Tribunal to allow an insured person to apply for dispute resolution despite being non-compliant with s. 44. Section 55(3) of the Schedule provides that the Tribunal may impose terms and conditions on any permission granted.
31I decline to exercise my discretion under these sections because the applicant has not put forward a reasonable explanation for her non-attendance at the IEs. I further do not agree with the applicant that the respondent has not suffered any prejudice due to her non-attendance at all of the requested IEs. For more than 22 months after the accident, the respondent has been unable to assess the applicant or obtain needed medical evidence as to the applicant’s impairments.
32Further, I deny the applicant’s request to stay the proceedings pending attendance at the IEs. Granting a stay pending the applicant’s compliance with a s. 44 request could stall these proceedings inordinately. Ultimately, it could deprive the Tribunal of the ability to finally dispose of the application on its merits and deny the parties certainty and finality as to the outcome of the dispute.
ORDER
33For the reasons above, I find that the applicant is barred from proceeding to the substantive issue hearing with the following OCF-18s:
i. OCF-18 submitted April 25, 2022 for physical therapy in the amount of $3,622.31;
ii. OCF-18 submitted May 3, 2022 for occupational therapy services in the amount of $4,538.80;
iii. OCF-18 submitted May 3, 2022 for an occupational therapy assessment in the amount of $2,200.00;
iv. OCF-18 submitted May 11, 2023 for a neurological assessment in the amount of $2,742.50; and
v. OCF-18 submitted June 5, 2023 for a psychological assessment in the amount of $2,144.80.
34The applicant may proceed to the substantive hearing with the remaining issues in dispute.
35Except for the above, all previous orders remain in force and effect.
Released: April 12, 2024
Ulana Pahuta
Adjudicator